This Week in Luxembourg

On Wednesday, the Grand Chamber (Judge Schiemann) ruled in three German gambling cases, all concerning the German system of national monopolies for gambling under the 2004 Staatsvertrag zum Glücksspielwesen in Deutschland, a "treaty" between the Länder governing this area of the law. (Cf. this BBC story.)

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In Winner Wetten, the court in Köln had already made all the findings of fact that would make the NRW-law in question unlawful under Gambelli, but was asking merely whether an exception to the principle of primacy might be made during the transition period created by a 2006 Constitutional Court ruling (English), which required the 2004 Staatsvertrag to be replaced with a new one. Unsurprisingly, the ECJ - like AG Bot - declined to create an exception to the principle of primacy.

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In Markus Stoß, too, the referring courts (in Gießen and Stuttgart) expressed doubts about whether the legal limitations in question were "consistent and systematic". The Court gives guidance on this point, while reiterating that there is no duty of mutual recognition in this area. Note also the answer to part (i) of question 1: A MS does not need a justification that predates the offending law: as long as they have the evidence to back up their claims now, that is enough. (par. 70-72)

·	In Carmen Media, a case from Schleswig-Holstein, the referring court was more neutral in its questions, and focused only on art. 49 EC. The resulting guidance is - obviously - similar to that in Markus Stoß.

·	Finally, the Fourth Chamber, again with Judge Schiemann as rapporteur, ruled in the Austrian case ofEngelmann that an MS may not restrict concessions for gambling establishments to domestic operators, and must award them in a transparent and competitive procedure.

AG Cruz Villalón has an opinion that seems simple enough, but that has some interesting aspects all the same. The Slovak Republic had failed to recover certain unlawful state aid because it ran into trouble before its own courts. The Slovak courts refused to issue an order reinstating a tax debt that had previously been written off, because that settlement was part of a settlement decree with various creditors and thus had the force of res judicata. After careful consideration, the AG concludes that Slovak law ought to allow for recovery in this situation anyway, the principle of legal certainty notwithstanding. Commission v. Slovakia.

AG Yves Bot has an opinion about the concept of "same acts" for the purposes of double jeopardy & European Arrest Warrants. (Cf. art. 3(2) of the Framework Decision) He claims for the European judiciary the right to decide what is or isn't a "same act" - i.e. he argues that it is an autonomous notion of Union law - and he argues that in the case at bar double jeopardy has not attached. Gaetano Mantello (NL, DE, FR)

AG Mengozzi, in applying Directive 84/450, as modified by Directive 97/55, defends a supermarket's right to say that its products are cheaper than those of its competitors, assuming of course "a sufficient level of interchangeability" between the products in question. In other words, the products do not have to be identical for them to be compared. Lidl v. Vierzon (NL, DE, FR)

AG Mazák explains that a contract is a concession agreement under Directive 2004/18 whenever the payment for services rendered is not made directly by the government or any organisation connected to it. The case concerned emergency medical services in Bavaria. (Cf. last year's Eurawasser for a similar problem.) Privater Rettungsdienst und Krankentransport Stadler (NL, DE, FR)

In the General Court the Council lost a Dutch terrorism-asset freezing case brought by the Al-Aqsa foundation, because the national basis for the European decision had been repealed years ago. Basically it's a procedural mess. (par. 148-184) Al-Aqsa v. Council.

Also, there are some competition cases, such as Tomra Systems, whose fine of € 24 million for abuse of dominance (exclusivity agreements, quantity commitments and loyalty rebates) was upheld against mostly fact-based challenges and Deltafina v. Commission, whose cartel fine of € 11.800.000 was reduced to € 6.120.000 because the Court determined that there was insufficient proof for the Commission's claim that Deltafina had acted as the leader of the cartel.

In other news from the General Court, the Commission was ordered to raise objections against a British decision to change the exemption for Northern Ireland from an environmental tax. The Fifth Chamber agreed with the applicants that the Commission's investigation was insufficient to establish that this tax discrimination would not lead to state aid issues. British Aggregates Association v. Commission.

Switzerland lost a claim against the Commission (standing in for Germany and the Landkreis Waldshut, who appeared as intervenors) under the Agreement on Air Transport of 1999. The Commission had authorised Germany underRegulation 2408/92, which applied to Switzerland under art. 18(2) of the Agreement, to restrict to some extent the approaches to Zurich Airport for noise reasons. The most important objection was that Germany's actions were discriminatory in that they treated Zurich differently from comparable German airports. Switzerland v. Commission (NL,DE, FR)

Then there are two cases about so-called "orphan medical products", i.e. medicine for rare diseases. (Cf. art. 3(1) ofRegulation 141/2000). In both cases, the decision declining to designate the product in question an orphan medical product was upheld by the General Court. CSL Behring v. Commission and EMA and Now Pharm v. Commission (DE,FR)